Exhibit 10.30
DME SUPPLY AND RELATED SERVICES
AGREEMENT
THIS DME SUPPLY AND RELATED SERVICES
AGREEMENT (the “Agreement”) is made and entered into
effective as of the 1st day of May 2005 by and between Island
Orthopaedics & Sports Medicine, P.C.
(“Provider”) and OrthoSupply Management, LLC, a
Massachusetts Limited Liability Company or its designee
(“OSMI”).
RECITALS
A. WHEREAS, Provider desires to
offer Provider patients requiring durable medical equipment and
orthotics (together referenced as “DME”) the option of
having such DME fitted and dispensed within its office suite (the
“Office”) in order to enhance the continuity,
convenience and quality of care provided to Provider
patients.
B. WHEREAS, OSMI supplies DME and
related services to physician groups and other health care
providers.
C. WHEREAS, Provider desires to
purchase DME and related services from OSMI to facilitate its
provision of DME to Provider patients.
D. WHEREAS, the parties desire to
enter into this Agreement in order to provide a full statement of
their respective responsibilities hereunder during the term of this
Agreement.
FOR AND IN CONSIDERATION of the
mutual covenants and agreements hereinafter contained, the parties
hereto hereby agree as follows:
OSMI shall have only the
responsibilities and authority delegated to it under this Agreement
or as delegated by Provider and accepted by OSMI from time to time.
Subject to the ultimate authority and control of the Provider, OSMI
shall have the following authorities and
responsibilities:
(a) Personal and Management
Services . OSMI shall provide the personal and management
services identified below in order to facilitate Provider’s
on-site provision of DME and related services to Provider
patients.
(1) Training of Manager .
OSMI shall assist the Provider to train one or more of its
employees (“Manager”) to assist Provider in processing
DME orders placed by Provider physicians, providing insurance
verifications, assuring proper inventorying and storage of DME in
the Office, proper fitting of DME, dispensing DME to Provider
patients who elect to order DME from Provider, performing patient
follow up to promote proper use and efficacy of DME and record
keeping related to the above duties, as reasonably requested by
Provider.
Descriptions of the Manager’s
essential functions and are attached as Exhibit A
hereto.
(2) Policy and Procedure
Manual . OSMI shall advise Provider regarding the compilation
of a policy and procedure manual (hereinafter referred to as the
“Manual”) for Provider’s review and approval,
which Manual shall include protocols, operating policies and
procedures and similar materials that are reasonably necessary for
the proper ordering, storage, fitting and dispensing of DME, as
well as proper documentation and patient follow up. OSMI may
recommend revisions to the Manual, as necessary, from time to time
and shall make such revisions as are necessary to tailor the Manual
to Provider needs.
(3) Educational Programs .
OSMI shall provide in-service training and educational programs for
Provider physicians and staff related to the proper fitting, use
and clinical benefits of DME.
(4) Quality Review Activities
. OSMI shall assist Provider in establishing a quality oversight
program and program evaluation standards to promote the efficacy of
DME and related services provided by the Provider.
(5) RehabPlus Solution . OSMI
shall provide RehabPlus Solution services as specified in Exhibit B
hereto. OSMI will provide over-sight and leadership management of
the Island Orthopaedics & Sports Medicine, P.C.’s
RehabPlus Solution.
(b) Billing and Collection
Services . OSMI and Provider acknowledge that billing and
collection shall be the sole responsibility of OSMI. Billing and
collection will be the responsibility of OSMI, such billing and
collecting services shall be rendered in a professional manner. The
Manager will handle all patient and encounter information of
Provider on services. The following information will be required by
Provider to process customer charges:
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Patient’s date of
birth
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Insurance information (copy of
face sheet)
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Front and back of insurance card
(copy)
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Office notes if billing an
unlisted procedure or billing a multiple procedure on the same
day
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Any additional information
required by OSMI for billing purposes
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Based upon the above information
received from Provider, OSMI shall provide the following billing
and account management services:
(1) Patient Services Billing
: Create claims or invoices, create patient bills, post payments,
perform collection follow-up.
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(2) Reporting : A set of
monthly reports will be forwarded to Provider to detail the
activity of the month. Specific reports will be determined through
mutual consent of Provider and OSMI at the time of
start-up.
(3) Billing for Agreement
Services : For service described herein, OSMI will create a
monthly bill for the cost of goods.
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2.
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Obligations of Provider
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(a) Organization and
Operation . Provider shall retain ultimate legal responsibility
for the proper operation of the Provider. Provider, as a continuing
condition of OSMI’s obligations under this Agreement, shall
at all times during the Term be and remain legally organized and
operated to provide physician services. Provider also will ensure
that it is organized as a “group practice” as that term
is defined in the Stark Act (42 U.S.C. § 1395nn(b)(2)) and
regulations promulgated pursuant thereto (42 C.F.R. §
411.355(b)), both as amended from time to time, including but not
limited to the “Special Rules for Profit Shares and
Productivity Bonuses” attached as Attachment A. Provider also
will be operated in a manner that qualifies Provider’s
provision of DME to Provider patients for the “in-office
ancillary services exception,” as defined by such
regulations.
(b) Provision of Physician
Services . The parties acknowledge and agree that Provider,
through its physicians, shall be responsible for and shall have
complete authority, responsibility, supervision and control over
the provision of all physician services rendered by the Provider,
and that all medical treatments and procedures related to the use
of DME shall be provided and performed exclusively by or under the
supervision of Provider physicians in such manner as Provider
physicians, in their sole discretion, deem appropriate. OSMI shall
have and exercise absolutely no control or supervision over the
provision of physician services.
(c) Engagement of Clinicians
. Provider shall be solely responsible for engaging all physician
and all non-physician personnel necessary to the proper operation
of Provider.
(d) Quality Oversight Program
. Provider shall adopt a quality oversight program to monitor and
evaluate the quality and cost-effectiveness of DME and related
services provided at the Provider. Upon request of Provider, OSMI
shall provide administrative assistance to Provider in performing
its quality assurance/utilization review activities.
(e) Liaison . Provider and
OSMI shall agree upon one or more Provider representatives to serve
as liaison(s) for OSMI regarding RehabPlus billing and operational
matters.
(f) Direction and Supervision of
DME-Related Services . Provider shall be solely responsible for
identifying appropriate patients for DME and related services,
certifying the medical necessity of such DME and related services,
scheduling all Provider services (including DME fittings and follow
up appointments) and supervising the services of the RehabPlus
Manager. The degree of supervision required should be that which is
required to bill applicable payors for DME and related services and
to qualify for the “in-office ancillary services
exception” to the Stark Act identified above. Provider also
shall be responsible for
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reviewing and evaluating the
performance of the Manager, with a formal review to be conducted
not less than annually.
(g) Documentation . Provider
shall be solely responsible for providing appropriate medical
documentation, as necessary to satisfy all applicable legal
requirements, professional standards and billing requirements,
including but not limited to letters of medical necessity and
signed orders. Provider shall place all orders for DME from OSMI
using order forms provided by OSMI and shall be responsible for
selecting principal diagnosis and procedure codes based on Medicare
and other applicable payor standards and guidelines. Provider
agrees to comply with all DME order entry procedures specified by
OSMI. Provider shall maintain a separate accounting of all
collections it receives from DME and related services provided
pursuant to this Agreement. Provider shall deposit any such
collections into the Bank Account within three (3) calendar
days of receipt by Provider. Provider shall weekly forward copies
of Explanations of Benefits forms and/or receipts of payment in
order to enable proper updating of patient accounts receivable
ledgers and accounting for total collections.
(h) Licenses, Permits and
Certifications . With assistance from OSMI as set forth on
Exhibit B hereto, Provider shall be responsible for obtaining and
maintaining any licenses, permits, certifications and provider
numbers necessary for the Provider to dispense DME within the
Office and bill payors for DME and related services.
(i) Financial
Responsibilities . Provider shall, at its sole
expense:
(1) Provide all necessary Office
space (by lease or otherwise), receptionist services, security
services and utilities as may be required for operation of the
Provider, including the storage, fitting and dispensing of
DME.
(2) Equip and furnish the Office
space within which DME may be stored, fitted and
dispensed.
(3) Arrange any modifications,
maintenance and repairs to the Provider premises, furnishings or
equipment necessary to maintain the Provider in good condition and
in compliance with all applicable legal requirements.
(4) Pay all physician and other
Provider employee salaries and benefits, as well as compensation to
independent contractors engaged directly by Provider.
(j) Charges . Provider shall
determine the charges for all DME and related services provided to
Provider patients.
(k) Compliance with Law and
Professional Standards . All of Provider’s duties and
responsibilities shall be conducted in accordance with all
applicable federal, state and municipal laws, rules, regulations,
ordinances and orders, professional standards and the ethical
standards and standard of care of the medical community wherein the
Office is located.
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(l) Collection Responsibility and
Payment to OSMI . Provider shall be responsible for:
(1) Collecting, receiving and
administering, in Provider’s name and Provider’s
account, for deposit into a bank account held in the name of
Provider (the “Bank Account”), all accounts receivable
attributable to DME and related services provided to Provider
patients in the Office in accordance with collections procedures
approved by Provider. Such accounts receivable shall be owned by
Provider and shall constitute revenue to the Provider.
(2) Maintaining files containing
documentation to support claims filed by Provider.
(3) Forward all RehabPlus related
Explanation of Benefits (EOB) to OSMI weekly from date of
receipt.
(m) Compliance with Law . All
of OSMI’s duties and responsibilities shall be conducted in
accordance with all applicable federal, state and local statutes,
rules and regulations.
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3.
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Compensation for OSMI Services
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In consideration for the items and
services provided by OSMI pursuant to this Agreement, OSMI shall be
compensated as follows:
(a) Billing & Collection
Services . Provided by OSMI pursuant to Section 1(b), OSMI
will provide the billing & collection for the Island
Orthopaedics & Sports Medicine, P.C.’s RehabPlus
Solution. The fee for such services will be $4,000.00 per month and
payable on the fifteenth (15) of every month; except that OSMI
shall accrue the billing fee for the first three (3) months
(for a total accrual of $12,000.00), and then such fee will be
billed over the remaining nine (9) months of the Agreement (at
$1,333.33 per month). By way of example, in months four
(4) through twelve (12) of this Agreement the amount due
from Provider for billing and collecting shall be $5,333.33 per
month.
(b) DME . As compensation for
the DME supplied to Provider by OSMI pursuant to Section 1(c),
OSMI shall be paid in accordance with the fee schedule attached as
Exhibit C.
(c) Invoicing . OSMI shall
not issue its initial invoice to Provider (for goods and services
delivered during the first month that this Agreement is in effect)
until at least forty-five (45) days after the commencement
date of this Agreement and such invoice shall not be due and
payable until thirty (30) days after such issuance.
Thereafter, OSMI shall invoice Provider for all fees due under
Section 3(a & b) hereunder on a monthly basis.
Provider shall be invoiced for fees due under Section 3(c) the
following month after products are ordered by Provider. If any
amount so invoiced or automatically payable is not paid on or
within forty-five (45) calendar days after the invoice is
received or fees are automatically payable, the outstanding balance
shall bear simple interest from the date of said invoice or payment
date at a rate of one percent (1%) per month until such amount
is paid in full. Any payments made thereafter received by OSMI
shall be applied first to interest accrued but unpaid and then to
the oldest unpaid payable/invoice. In addition, the parties agree
that a failure by Provider to
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pay any such invoice or amount
automatically payable within forty-five (45) calendar days of
the date the invoice is received or the payment date (as the case
may be) shall be a material breach of this Agreement, subject to
cure provisions of Section 6(b). Any such termination of this
Agreement by OSMI shall not affect Provider’s obligation to
pay amounts due to OSMI under this Agreement, but no such payment
after the cure period shall affect the effectiveness of such
termination.
Payment of the compensation due to
OSMI is not intended to be and shall not be interpreted or applied
as permitting OSMI to share in Provider’s fees for physician
services or any other services, but is acknowledged as the
parties’ negotiated agreement as to the reasonable fair
market value of the items and services furnished by OSMI pursuant
to this Agreement.
The term of this Agreement shall
commence on May 1, 2005 (“Commencement Date”) and
shall remain in full force and effect for a period of one
(1) year (the “Initial Term”) and SHALL BE
AUTOMATICALLY RENEWED FOR AN ADDITIONAL ONE (1) YEAR PERIOD
(THE “RENEWAL TERMS”) THEREAFTER UNLESS EITHER PARTY
GIVES THE OTHER PARTY NOTICE OF ITS INTENT NOT TO RENEW AT LEAST
SIXTY (60) CALENDAR DAYS PRIOR TO THE EXPIRATION OF THE
INITIAL TERM OR ANY RENEWAL TERM.
The provisions of Section 5 of
this Agreement notwithstanding, this Agreement may be terminated
prior to the expiration of its Initial Term or any Renewal Tern as
follows:
(a) Termination for
Insolvency . If either party shall apply for or consent to the
appointment of a receiver, trustee or liquidator of itself or of
all or a substantial part of its assets, file a voluntary petition
in bankruptcy, or admit in writing its inability to pay its debts
as they become due, make a general assignment for the benefit of
creditors, file a petition or an answer seeking reorganization or
arrangement with creditors or take advantage of any insolvency law,
or if an order, judgment or decree shall be entered by a court of
competent jurisdiction, on the application of a creditor,
adjudicating such party a bankrupt or insolvent or approving a
petition seeking reorganization of such party or appointing a
receiver, trustee or liquidator of such party or of all or a
substantial part of its assets, and such order, judgment or decree
shall continue unstayed and in effect for any period of thirty
(30) consecutive calendar days, the other party may terminate
this Agreement by giving such party notice of termination which
shall be effective on the date set forth therein.
(b) Cancellation for Breach .
In the event of a material breach of this Agreement by either
party, the other party may cancel this Agreement by giving written
notice of cancellation to the breaching party, setting forth the
reasons therefor, which cancellation shall be effective and final
upon the expiration of twenty (20) calendar days after
delivery in accordance with Section 14(f) hereof or at such
later date and time as may otherwise be specified in such notice.
Not withstanding the above, if the nature of the breach is such
that it
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can reasonably be cured and if the
breaching party commences such cure in good faith and, within ten
(10) calendar days after delivery of the aforesaid notice of
cancellation, gives written notice to the canceling party of the
action being taken to effect such cure, then this Agreement shall
not be canceled because of such breach, unless the breaching party
thereafter fails to pursue such cure diligently and in good faith
to completion within a reasonable period of time, but in no event
more than twenty (20) calendar days after giving notice of
such cure to the canceling party. However, if the breaching party
fails to so cure such breach, the canceling party shall have the
right to terminate this Agreement by sending written notice of
final cancellation to the breaching party, which final termination
shall be effective upon the expiration of ten (10) calendar
days after delivery in accordance with Section 14(f) hereof or
at such later date and time as may otherwise be specified in such
notice. In the event that this Agreement is terminated for cause
under this Section during the Initial Term, the parties shall not
enter into any other agreement for DME or related services during
what would have been the remainder of the Initial Term.
(c) Termination Without Cause
. Either party may terminate this Agreement without cause at any
time following the Initial Term by providing prior written notice
to the other party, which final termination shall be effective upon
the expiration of ninety (90) calendar days after delivery in
accordance with Section 14(f) hereof or at such later date and
time as may otherwise be specified in such notice.
(d) Termination Based on Change
of Law . In the event of any change in any applicable statute,
rule, regulation, ordinance, or other law or any order or directive
or interpretation of any applicable governmental authority or
regulatory body which, in the written, good faith opinion of
experienced health care regulatory counsel, invalidates or is
otherwise inconsistent with the terms of this Agreement or that
would cause one or both of the parties to be in violation of the
law, the parties shall negotiate in good faith in an effort to
agree on appropriate revisions to this Agreement. If the parties
have been unable to do so within thirty (30) calendar days of
commencing such negotiation, either party may elect to terminate
this Agreement upon sixty ( 60 ) calendar days’
written notice to the other party.
(e) Obligations Upon
Termination . Following the